A 1960s song written by Chuck Berry, which was later re-recorded by artists ranging from rock icon Bruce Springsteen to country star Emmylou Harris, states in its refrain that “it goes to show you never can tell.” Litigation — especially family law litigation — can be a lot like that. There are a great many facts, legal issues, and procedural nuances that can make your case unique and unpredictable. Legal counsel can help you deal with the peculiarities and detours of your case. Take, as an example, a recent case in which the Third District Court of Appeal granted a husband’s appeal and awarded a new trial in the man’s divorce case after the court reporter’s records of the original trial were lost through no fault of the husband.

After D.J. (husband) filed for divorce from his wife, K.J., a final hearing took place across four days in March and April 2014 in a Miami-Dade Circuit Court. When the hearing was over, the trial judge issued a final judgment on child support, parental responsibility, timesharing, alimony, and the equitable distribution of assets and debts.

Unsatisfied with the outcome, the husband appealed. Four weeks later, the husband’s attorney submitted a request for an official transcript of the final hearing. This was when the husband encountered an unusual problem. The court reporter who had attended and reported all four days of the final hearing had died suddenly and unexpectedly a week and a half before the husband’s lawyer made the transcript request. The reporting firm searched through the deceased reporter’s recordings and stenographic equipment, but it could not find anything from the couple’s trial.

In situations like this, when the official record of a hearing that is the subject of an appeal was lost, the law does allow for another means for going forward with the appeal process. Rule 9.200 of the Florida Rules of Appellate Procedure allows the appellant (the husband in this case) to “prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection.” Once the husband prepared his statement, he was required to submit it to the wife, whom the law gives the opportunity to make objections or to propose changes.

In this case, that process didn’t work either. Each spouse objected to the other’s recollection, and the trial judge turned down a motion to supplement the record. As a result, the husband went forward with his appeal, proceeding solely based upon his recollection of the facts of the hearing. The wife argued that, since the husband did not have an official record supporting his appeal, the court should uphold what the trial court decided and reject the appeal.

The appeals court disagreed. The court concluded that the circumstances of this case were extremely unusual and that the only fair and just way to deal with the situation was to reverse the trial court’s ruling and send the case back for a brand new trial. The fact that the husband had carried his appeal forward without an official record of the trial was entirely not his fault, and, once he encountered the problems created by the reporter’s surprising death, the husband properly attempted to go forward following the path set out by Rule 9.200. The court pointed out that, for many decades, Florida law has stated that, when “essential records have been destroyed by an official of the lower court,” such as a court reporter, and the destruction is entirely outside the fault of the party bringing the appeal, the appeals court has the authority to grant a new trial.

As you plan to address your family law issues, capable legal counsel can be an essential asset as you deal with all the unique aspects of your case. The diligent and knowledgeable South Florida divorce attorneys at Sandy T. Fox, P.A. have years of experience and familiarity with dealing with all manners and variations of cases. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.